ASU Turns Forty, and Thomas Nagel Recants…Sort Of

Robert Nozick’s classic defense of natural rights libertarianism, Anarchy, State, and Utopia, was published forty years ago. Given the strong, continuing academic and popular interest in this work, the publisher’s decision to bring out a new edition to commemorate this milestone is hardly surprisingly. However, what is a bit startling is its choice of Thomas Nagel to contribute a Foreword to it.  

ASU was not warmly received by the academic establishment, and Nagel was one of its most vehement critics.  His now famous (or infamous, depending on one’s views) 1975 review in the Yale Law Journal, was pointedly titled “Libertarianism Without Foundations.”[1] There, he asserted that Nozick “starts from the unargued premise that individuals have certain inviolable rights” (193),  which Nagel regarded as utterly implausible. As a result of this and other flaws, he found ASU “entirely unsuccessful as an attempt to convince, and far less successful than it might have been as an attempt to someone who does not hold the position why anyone else does hold it.” (192)

As discussed below, Nagel’s charge regarding the lack of an ethical foundation for Nozick’s libertarianism is false, but before addressing this, it must be said that Nagel’s judgment regarding ASU‘s persuasiveness is equally erroneous. Writing in 1990, Jonathan Wolff, an academic philosopher with impeccable leftist credentials, noted that among his students he “fairly often” encounters the view that “broadly speaking, Nozick is right.”[2]

Moreover, Philip Petit, a respected contemporary academic philosopher with no libertarian sympathies, observed in 2002 that ASU “stands unchallenged as the most coherent statement available of the case for a rights-based defense of the minimal, libertarian state.”[3] Entirely unsuccessful attempts at persuasion do not receive the  critical fire directed at ASU; their ideological adversaries simply leave them to die a quiet death.

With respect to ethical foundations, it appears impossible to entirely avoid “unargued premises,” since by their very nature premises are the starting point for further reasoning, and as Bertrand Russell noted, we must start with “the kind of proposition of which proof is impossible, because it is so simple or so obvious that nothing more fundamental can be found from which to deduce it.”[4] . Thus, while Nozick begins with the assumption that individuals are inviolable, meaning  that we may not treat them merely as a means to achieve some allegedly greater end,  he does not end there.

As explicated in detail in Chapter 1 of my Nozick’s Libertarian Project: An Elaboration and Defense, and more concisely here: http://naturalrightslibertarian.com/2013/03/nozicks-experience-machine-not-broken/, Nozick defends libertarian rights by means of an argument from the best explanation. The reason, he says, that competent adults are inviolable is that they are rational agents.

And this unique (so far as we know) attribute is the origin of our special moral status.  From here, he argues that the use of force or coercion by other individuals or the state is a morally inappropriate response to our rational agency.  In other words, our commitment to the general inviolability of persons implies that (absent exigent circumstances) they may not be coerced, including the forced transfer of justly acquired property.

At least by 1995, Nagel appears to have had second thoughts about his “libertarianism without foundations” charge. In an essay “Personal Rights and Public Space,” Philosophy and Public Affairs 24/2 (Spring 1995): 83-107 (not available in an ungated version), he seeks to flesh out the moral basis for individual rights, especially those relating to free speech and sexuality (sexual orientation, pornography, etc.). In this paper, after crediting Nozick with being one of the first philosophers to identify this feature of rights, he embraces the “deontological paradox,” i.e. the view that it is sometimes wrong for an agent to harm other persons even if this act would prevent greater harm overall.

He accepts that this constraint is due to the special status conferred on human beings:  “the status is that of a certain kind of inviolability, which we identify with the possession of rights, and the proposal is that we explain the agent-relative constraint against certain types of violations in terms of the universal but non-consequentialist value of inviolability itself.”  Accordingly, even political majorities that sincerely hold contrary values, “must accord to each person a limited sovereignty over the core of his personal and expressive life…this sovereignty or inviolability is itself…the most distinctive value expressed by a morality of human rights.”

Fast forwarding now to Nagel’s Foreword, he acknowledges that “Nozick’s interpretation of the logic of rights as side constraints is of fundamental philosophical importance, whether or not one agrees that the specific rights he identifies have the absolute priority that he gives them.”  ASU, 2nd ed., xiii. So, never mind about that old “libertarianism without foundations” business.

In his Foreword, Nagel observes that modern-day liberals “do not include among the inviolable basic rights an unlimited natural right to acquire and dispose of private property.” ASU, xiv. Thus, each person is entitled to “sovereignty” over the core of their personal and expressive lives, but the state may tax away from them at least some of the means they might wish to employ to fulfill these aspirations.

I believe the stance taken by Nagel in his 1995 paper and the more recent Foreword is untenable.  Rights are not moral bedrock. We are only required to recognize and respect them because they are the fitting moral response to beings that possess certain attributes, i.e. free will, moral agency, etc., as described by Nozick. This fact is not lost on Nagel, as he notes in his 1995 essay that rights “embody a form of recognition of each individual’s value which supplements and differs in kind from the form that leads us to value the overall increase in human happiness.” (my emphasis)

But, what is it about individuals that makes them valuable, and thereby renders it wrong, as Nagel says in his essay, for an agent “to kill one innocent person even to prevent two other innocents from being killed”? Nagel is right to endorse this constraint, but I very much doubt that he would hold that it is wrong to kill one innocent chimp to save two others. What is it about persons that distinguishes them? Without a satisfactory answer to this question, all his talk about “inviolability” is ungrounded.

He never gets around to providing it, but in rejecting the right of the state to censor hate speech he refers to the existence of “a morally protected sphere of mental autonomy.” Eloquent language, indeed: but why doesn’t our sphere of mental autonomy extend to decisions we make about the disposition of our resources? If it is forbidden–without appealing to the adverse consequences of this policy–to coerce nasty people into not expressing stupid and offensive opinions, why is it not also impermissible to coerce decent people who prefer to use their resources other than in support of the welfare state? If the former is excluded, it seems compelling–absent a good argument to the contrary– that the latter must also be.

I don’t believe any such argument is on offer, because the distinction Nagel and like-minded liberals posit is arbitrary and unprincipled.  Whatever it is about competent adults that implies an unfettered right of free expression and unimpeded access to pornography, that feature or set of features must surely also protect the decisions they make about their material resources. As Nozick puts it, when other people (acting alone or through the state) ignore this moral discretion, it “makes them a part-owner of you; it gives them a property right in you. Just as having such partial control and power of decision, by right, over an animal or inanimate object would be to have a property right in it.” (ASU, 172) (emphasis in original).

My advice to Thomas Nagel: Take out your copy of ASU, and keep reading.

_________________

[1] Collected in Reading Nozick: Essays on Anarchy, State, and Utopia,” Jeffrey Paul ed. (Oxford: Basil Blackwell, 1982). Page references to Nagel’s review are to this source.

[2] Jonathan Wolff, Robert Nozick: Property, Justice and the Minimal State (Stanford: Stanford Univ. Press, 1991), vii.

[3] Philip Petit, “Non-Consequentialism and Political Philosophy,” in David Schmidtz ed., Robert Nozick (Cambridge; Cambridge University Press, 2002), 83.

[4]  Bertrand Russell, “The Elements of Ethics,” collected in Sellars and Hospers, Readings in Ethical Theory, 2nd ed. (New York: Appleton-Century, 1970), 4

 

 

 

 

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6 Responses to ASU Turns Forty, and Thomas Nagel Recants…Sort Of

  1. Hi Mark,

    Just a somewhat tangential comment. You say:

    ‘With respect to ethical foundations, it appears impossible to entirely avoid “unargued premises,” since by their very nature premises are the starting point for further reasoning.’

    There are two separate points there, one true, one false. The true one is that it is impossible to avoid unargued premises, on pain of infinite regress. But whatever we accept as unargued premises at one time, or in one context, may be argued for (or against) at another time or in another context. As Hayek, and also Popper, says: we can challenge any view; but we cannot challenge every view at the same time.

    The second point, which is false, is that premises are the starting point for reasoning. That takes account only of dogmatic arguments, which try to show that something must be true given that something else is. But there are also (and much more importantly) critical arguments. These show that something must be false, given that something else is. When we try to solve problems, in maths or science or anywhere else, what we do is to propose a theory or, better, to propose several theories, and then test the theories by discovering whether some rather mundane propositions that we accept are incompatible with the theories.

    Your quote from Russell is most curious. In 1901 (nine years before the publication date of Elements of Ethics) Russell discovered Russell’s paradox, which showed that what had been thought to be a self-evident axiom for arithmetic was actually self-contradictory. As a result, Russell gave up the project of proving maths from logic and regarded mathematical and logical axioms as being theories to be tested against previously accepted theorems. He is what he later said in ‘Logical Atomism’ (1924):

    ‘When pure mathematics is organised as a deductive system – i.e. as the set of all those propositions that can be deduced from an assigned set of premises – it becomes obvious that, if we are to believe in the truth of pure mathematics, it cannot be solely because we believe in the truth of the set of premises. Some of the premises are much less obvious than some of their consequences, and are believed chiefly because of their consequences’ (in ‘Logic and Knowledge,’ p. 325).

    Along these lines, I think the appropriate reply to Nagel is that, as in mathematics, we cannot have foundations; but we do not need them anyway. What we need are ethical theories which explain more – solve more problems – than their rivals, and do so in a simpler and more illuminating way.

    • Mark Friedman says:

      Hi Danny:
      Thanks for the interesting comment. First, the little snippet from Russell is from a piece that originally appeared in his book Philosophical Essays. The editors of the anthology in which it appears append a footnote in which they quote Russell as saying that he no longer subscribes to Moore’s Principia Ethica, and specifically that “I do not now think that ‘good’ is undefinable, and I think that whatever objectivity the concept may possess is political rather than logical.” A longer version of the quote in the OP is found at p.21 of my book. He is talking here specifically about ethical reasoning, although his language is broad. I don’t believe that the footnote implies that Russell renounced the ideas in this quote as they apply to ethics, but I am no expert on Russell and certainly could be wrong.

      As you know, we disagree about the nature of moral truth, and therefore the proper mode of reasoning. But even putting this basic disagreement aside, I am of the view that while our moral beliefs will evolve, the most correct moral theory will always hold that acts now conventionally called “murder” are morally wrong. I guess only time will tell if I am right about this, but if this assumption is correct, what is problematic about reasoning from this starting point, as Nozick does? In other words, to use this premise as a foundation for further conclusions.

  2. What I find odd in this work of Russell is that it was published in 1910, because it means that he was still a dogmatist in ethics even after he had discovered Russell’s paradox (and other paradoxes of logic). But it took him some years to develop a settled view of the paradoxes and what they implied, so perhaps he was still a dogmatist in maths and logic in 1910 and became a fallibilist only afterward.

    Murder seems wrong by definition: if the killing were permissible, would it count as murder?

    But a problem with the dogmatic approach is that it requires agreeement on highly contentious propositions (otherwise, one could not derive any substantive conclusions), so one gets locked into internecine quarrels. The advantage of a critical approach is that we use less substantial propositions, on which we are likely to reach agreeement, to rule out some competing substantive theories that contradict them.

    • Mark Friedman says:

      Hi Danny,
      I will gladly defer to you on matters relating to Russell’s evolution as a philosopher. Just as a side note, the first philosophy book I encountered in college was his The Problems of Philosophy[1912], taught in my intro course. I don’t remember much about it, but I went on to take many more courses, so it couldn’t have been too boring.

      The reason I quoted Russell, of course, was simply to illustrate the way many ethicists approach moral reasoning. If I am fundamentally wrong here, at least I am in good company.

  3. Hi Mark,

    Russell’s ‘Problems of Philosophy’ is a good book and an entertaining one (in fact, Russell is always entertaining – dry humour). And he was one of the (few) great philosophers of the 20th century.

    You are certainly in the company of almost all contemporary philosophers (whether that is good company is debatable). As you probably realise, I reject the dogmatic/justificationist approach that is normally unquestioned in contemporary philosophy; but I am in a small minority.

    • Mark Friedman says:

      Perhaps you are right. Instead of “good,” maybe I should have said “well-known,” “highly credentialed,” “respected within the profession,” or something like that.

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